46:0915(82)AR - - NY State Council of the ACT and DOD, NG Bureau, NY State DEPT. of Military and Naval Affairs - - 1992 FLRAdec AR - - v46 p915

[ v46 p915 ] 46:0915(82)AR
The decision of the Authority follows:

46 FLRA No. 82

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NEW YORK STATE COUNCIL OF THE
ASSOCIATION

OF CIVILIAN TECHNICIANS

(Union)

and

U.S. DEPARTMENT OF DEFENSE

NATIONAL GUARD BUREAU

NEW YORK STATE DEPARTMENT OF MILITARY

AND NAVAL AFFAIRS

(Agency)

0-AR-2244

(46 FLRA 66 (1992))

ORDER DENYING MOTION FOR RECONSIDERATION

December 9, 1992

Before Chairman McKee and Members Talkin and
Armendariz.

I. Statement of the Case

This matter is before the Authority on the Agency's motion for
reconsideration of the Authority's decision in 46 FLRA 66 (1992). The Union
filed an opposition to the motion.(1) Because the
Agency fails to establish that extraordinary circumstances exist that warrant
reconsideration of our decision, we will deny the motion.

II. Arbitrator's Award and the Decision in 46 FLRA 66

The Arbitrator concluded that the Agency violated applicable
regulations by selecting an unqualified candidate for a position. In reaching
that result, the Arbitrator found that the selected employee lacked the
requisite experience called for in the vacancy announcement. The Arbitrator
also found that the selected employee "was not a marginal applicant. He
out-and-out just did not qualify." 46 FLRA at 69, quoting Arbitrator's award.
However, the Arbitrator declined to remove the selected employee from the
position, as requested, for several reasons. Among them, the Arbitrator noted
that the Agency needed someone to perform the duties of the position and that
the selected employee was performing well in that capacity.

The Union filed exceptions to the award on the basis that it was
contrary to rule and regulation. Specifically, the Union argued that the
Arbitrator's failure to vacate the improperly filled position violated Federal
Personnel Manual (FPM) chapter 335, Appendix A, section A-4(b)(1)(b), Agency
regulation TPR-335, the State Merit Promotion Plan DMNA Pamphlet 690-4, and the
merit promotion plan contained in the parties' negotiated agreement. The Agency
did not file an opposition to the Union's exceptions.

The Authority concluded that the failure to remove the incumbent
employee from the position rendered the award inconsistent with FPM chapter
335, Appendix A. In reaching that result, we discussed the provisions of
Appendix A, which governs corrective actions when an agency has failed to
adhere to its promotion plan. We noted, quoting section A-4(a)(2)(a) of
Appendix A that "[a] procedural violation occurs when a promotion action does
not conform to the requirements of the applicable promotion plan." 46 FLRA at
71. Based on our reading of the award and the relevant FPM provisions, we found
"that the Agency committed a procedural violation of the FPM because its
selection action did not conform with a requirement contained in its merit
promotion plan." Id.

Accordingly, we modified the award to direct the Agency to remove the
incumbent employee. We also directed the Agency to rerun the selection action
and to take such actions as would conform fully with controlling law and
regulation and the parties' collective bargaining agreement.

III. Agency's Motion for Reconsideration

The Agency contends that the Authority erred in: (1) determining that
the violation was procedural rather than regulatory; and (2) basing its
decision on FPM chapter 335. In its first argument, the Agency claims that
"Section A-4(a)(2)(b)(ii), Chapter 335 of the FPM and [National Guard
Bureau] regulations define the failure to meet qualification requirements at
the time of promotion as a regulatory violation." Motion for Reconsideration at
1. As to its second argument, the Agency states as follows:

The FPM does not apply to Army and Air National Guard Technicians
employed under 32 U.S.C. 709 unless specifically made applicable by the
National Guard Bureau's (NGB) regulations. The Merit Placement regulations
governing technicians employed under 32 U.S.C. 709 is the NGB Technician
Personnel Regulation (TPR) 300, Chapter 335.

The Union claims that the Agency's argument regarding the applicability
of the FPM is misplaced. The Union argues that the Agency cited no authority
specifically exempting employees from coverage of FPM chapter 335 and, further,
that the portion of the merit promotion regulation submitted by the Agency
indicates that it is to be "filed with FPM Chapter 335." Opposition at 2. The
Union cites a number of Authority decisions involving National Guard
technicians in which "[r]elevant principles contained in the Federal Personnel
Manual" have been relied on by the Authority and the agencies involved. The
Union also notes that the Agency did not respond to the Union's exceptions,
which raised the applicability of FPM chapter 335. Finally, the Union states
that the Agency's argument concerning a regulatory, rather than procedural,
violation "is not clearly articulated" and should be dismissed. Id. at
2, 3.

V. Analysis and Conclusions

Section 2429.17 of the Authority's Rules and Regulations permits a
party that can establish the existence of "extraordinary circumstances" to
request reconsideration of a decision of the Authority. We conclude that the
Agency has not established extraordinary circumstances within the meaning of
section 2429.17 to warrant reconsideration of our decision in 46 FLRA 66.

The Agency claims that the provisions of the FPM do not apply to
bargaining unit employees unless specifically made applicable to them.(2)/ However, the Agency does not expressly state that it
has not extended those provisions to bargaining unit employees and, more
particularly, to the position at issue in this case. Without a clear indication
from the Agency that there has been no extension of FPM chapter 335, and in
light of the Agency's acknowledgment that it has the authority to adopt
portions of the FPM, we are unable to conclude that our reliance on FPM chapter
335 was in error. Furthermore, in our decision in U.S. Department of
Defense, Delaware National Guard, Wilmington, Delaware and Association of
Civilian Technicians, 39 FLRA 1225 (1991), we relied on FPM chapter 335,
Appendix A in finding that a portion of an award directing the agency to
rescind all promotion selections was deficient. The agency made no contention
that the Authority's reliance on that provision was erroneous.

Additionally, we reject the Agency's contention that the Authority
incorrectly found that the violation at issue was procedural, rather than
regulatory. Under the provisions of FPM chapter 335, Appendix A, as referenced
in our decision, a failure to conform to the requirements of an applicable
promotion plan, as occurred in this case, constitutes a procedural violation.
However, even if the Agency were correct in asserting that the violation was
regulatory, rather than procedural, removal of the incumbent employee would be
warranted under the provisions of the FPM. Thus, the relevant provisions of the
FPM governing corrective action for regulatory violations provide that an
employee may be retained in a position if that employee currently meets the
necessary qualification or regulatory requirements and the appropriate office
of the Office of Personnel Management (OPM) gives approval for the retention.
See FPM chapter 335, Appendix A-4(b)(1)(c). There was no evidence in the
record before the Authority in its original consideration of the case, and
there is none accompanying the Agency's motion presently, that indicates that
the appropriate OPM office approved the retention of the incumbent employee as
is required.

Moreover, even if the Agency has not extended coverage of FPM chapter
335 to the employees involved herein, and the violation was regulatory under
the terms of the Agency's merit promotion plan, removal of the incumbent would
still be warranted. In a provision that is analogous to the FPM requirements
regarding corrective action for regulatory violations, the Agency's merit
promotion plan permits retention of an incumbent employee after a regulatory
violation "only if he/she now meets all requirements and if the National Guard
Bureau or appropriate OPM office (regional or central) gives approval." Motion
for Reconsideration, Attachment at 4. There was no evidence presented in the
record to establish that the requisite approval had been given.

VI. Order

The Agency's motion for reconsideration is denied.

FOOTNOTES: (If blank, the decision does not
have footnotes.)

1. We will consider the Union's submission pursuant to
section 2429.26 of our Rules and Regulations.

2. In this regard, we note that 32 U.S.C. º 709(d),
which governs National Guard technician employment, states that "a position
authorized by this section is outside the competitive service if the technician
. . . is required . . . to be a member of the National Guard." As here
relevant, FPM chapter 335 governs promotion and internal placement in the
competitive service.